R v Cowe - [2010] SASCFC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COWE
[2010] SASCFC 46
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice David)
5 November 2010
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence – appellant pleaded guilty to aggravated recklessly causing harm to his daughter aged four months – appellant sentenced to two years’ imprisonment with a non-parole period of 12 months – whether sentencing Judge erred in failing to suspend the sentence – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 24, referred to.
Dinsdale v The Queen (2000) 202 CLR 321, applied.
R v Galffy [2009] SASC 261, distinguished.
House v The King (1936) 55 CLR 499; R v Partridge [2008] SASC 323; R v Johnston [2007] SASC 300, considered.

R v COWE
[2010] SASCFC 46
Court of Criminal Appeal: Sulan, White and David JJ

SULAN J: On 8 July 2010, the appellant, Hamish Alexander Cowe, was sentenced to two years’ imprisonment, with a non-parole period of 12 months for the offence of aggravated recklessly causing harm to his daughter, to whom I shall refer as “S”, contrary to s 24(2) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for the offence is seven years’ imprisonment. The offence occurred between 9 March 2009 and 10 April 2009 when the victim was aged four months.
The sole ground of appeal is that the sentencing Judge was in error in failing to suspend the sentence of imprisonment. For the reasons which follow, I would dismiss the appeal.
Background
The appellant was 25 years of age at the time of the offence. He had been in a relationship with the victim’s mother for approximately five years. They had two children. S, the victim, was the younger. Since this offending, the relationship has ceased. The children have been placed in separate foster care under the supervision of Families SA. Until his imprisonment, the appellant continued to have supervised access to his children.
The victim, who was born in November 2008, suffered complications at birth from a condition whereby her oesophagus and windpipe were joined. After being released from hospital, she required special care when being fed. The appellant had difficulty dealing with the baby’s medical condition. The baby continued to suffer ill-health after she was released from hospital.
On 9 April 2009, the victim was seen by Dr Donald at the Lyell McEwin Hospital for a routine appointment. Her weight had not changed since she had been discharged a month before, so she was admitted to the hospital for further investigation. A routine spine X-ray revealed fractures of the posterior part of the right fourth, fifth and sixth ribs. Further investigations revealed that there were 20 rib fractures with varying degrees of callous formation, which indicated they were likely to be of differing ages.
On 23 April 2009, the medical staff met with the victim’s parents and they sought an explanation for the various skeletal injuries. No satisfactory explanation was forthcoming. Subsequently, on 13 May 2009, the appellant told the doctor that there might have been an occasion when he squeezed the victim’s chest because she would not stop crying.
The appellant was interviewed by police on 29 May 2009. He told the police that there was an occasion when the victim’s mother was having a shower and she asked him to feed S a bottle. He said:[1]
I could not settle S at all; at all she was just getting out of hand, she wouldn’t drink or anything and just kept crying an [sic] I just got that frustrated that I squeezed her and I didn’t think I squeezed that hard and obviously I did and I admit to that…
[1] AB 80.
He told the police that he was unaware that he had caused any significant injuries to the child, because there was no evident bruising or swelling. He said he did not mean to hurt her.
Dr Donald, a forensic paediatrician who treated S, was of the opinion that, at the time of X-ray, the rib fractures would have been at least seven to ten days’ old. He was of the opinion that such fractures occur because of either high force direct impact trauma, or chest encirclement by adult hands with violent chest compression, or a forceful combination of both types of assault.
The rib fractures in this case were not explained, as the detail provided by the appellant to the medical staff and to the police was insufficient for Dr Donald to form a conclusive opinion as to exactly how the fractures were sustained. Nevertheless, it is clear that a significant degree of force was necessary to cause those rib fractures which had been identified.
A psychologist who interviewed the appellant concluded that he is of below average range in both his verbal and non-verbal intelligence range. She concluded that he would fall into the borderline range of intelligence, mainly on the basis of very poor problem-solving skills in comparison to his non-verbal ability. He is a person who has few resources to cope with stressful situations, and becomes angry and frustrated if unable to cope. His level of insight and his level of personal responsibility is low.
The sentence
The Judge had regard to the psychological report. He referred to the report in some detail. He noted that the psychologist recommended various intervention programs targeting anger management as well as domestic violence, and parenting programs. He noted that those programs were available, both in a community and custodial setting.
Although the appellant had some prior offending history, the Judge observed that none of it was for offences of violence and it was relatively minor. The Judge correctly observed:[2]
The circumstances of the offence suggests that you unjustifiably lost your temper in reaction to a situation that was not particularly serious. This demonstrates a lack of self‑control and difficulty in managing your anger which is supported by the findings of the report provided to me by your counsel. This was a gross breach of trust. This type of behaviour is unacceptable. Children are entitled to the full protection of the law. Courts consistently say that such violence is not to be tolerated by the community.
[2] AB 56.
The Judge gave the appellant credit for having taken responsibility for his actions at a relatively early stage, and reduced the sentence by 30 per cent, having regard to the appellant’s plea of guilty and cooperation. In my view, this was a generous reduction, as it was not until the authorities began to investigate the injuries and the police were called in that the appellant admitted his involvement.
The Judge observed that this was an offence against a particularly vulnerable child and that, having regard to the requirement that the courts give consideration to personal and general deterrence, a sentence of imprisonment was called for. The Judge was correct in his conclusion. No issue is taken by the appellant in the decision of the Judge to impose a sentence of imprisonment. Nor is there any complaint that the period of imprisonment imposed was manifestly excessive. In my view, a sentence of two years’ imprisonment with a non-parole period of 12 months was a merciful sentence.
The Judge concluded that the offence was too serious to justify the suspension of the sentence.
The appeal
Counsel for the appellant submits that the Judge was in error in declining to suspend the sentence. Counsel did not point to any error of fact or law in the approach of the Judge. Counsel submits that the error in this case is that it was unreasonable in all of the circumstances not to suspend the sentence.
In support of that submission, counsel identified and highlighted the following matters. First, this was an offence in which there was no specific intent on the part of the appellant to harm the child. He pleaded guilty to reckless conduct, not intentional conduct. Second, the appellant acknowledged the wrongfulness of his conduct at an early stage. He is genuinely remorseful and sought treatment and counselling. Third, that prior to the offence, the appellant attempted to obtain counselling and treatment for his issues of anger and self-control, but that had not been forthcoming. Fourth, that the injuries were sustained as a consequence of a momentary lapse by the appellant when he was highly stressed and unable to cope. Fifth, that this incident had led to the irretrievable break down of the relationship of the appellant and his partner. As a consequence, the appellant has suffered the loss of his family. However, the relationship between the appellant and his partner was strained before this incident occurred. Further, it is the appellant’s conduct which is a major reason for the ultimate break down of the relationship.
Counsel submits that the circumstances of this offending cried out for a merciful approach, and that the failure by the Judge to conclude that good reason existed to suspend the sentence was so unreasonable as to amount to an appealable error.
Discussion
The decision as to whether to suspend a sentence is an exercise of a judge’s discretion. It is plain that such a discretion must be exercised judicially.[3] An appellate court will only interfere if the sentence imposed was manifestly excessive. In Dinsdale v The Queen,[4] which was an appeal against sentence on the grounds that it was manifestly inadequate, Gleeson CJ and Hayne J observed:[5]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusion and its reasons is [sic] made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
[3] See House v The King (1936) 55 CLR 499.
[4] (2000) 202 CLR 321.
[5] Ibid 325-6 [6].
Kirby J stated that, on occasions, it is not possible to identify an error with exactness, yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been failure to exercise the discretion properly.[6]
[6] See Dinsdale v The Queen, (2000) 202 CLR 321, 340 [59].
The appellant relied upon the observations of Bleby J in R v Galffy[7] that, in the case of a reckless act, the principle of general deterrence assumes a less significant factor than in the case of intended offences. Bleby J observed that the maximum penalty for offences involving recklessness are less than in cases involving intentional conduct. Nevertheless, I consider that general deterrence must be a significant consideration in cases of violence against defenceless children and infants. Galffy was an appeal by the Director of Public Prosecutions against the imposition of a suspended sentence in a case in which the offender had pleaded guilty to aggravated recklessly causing serious harm to his three-year-old son by kicking him. In concluding that good reason existed to suspend the sentence, the sentencing Judge considered that a significant factor was that Mr Galffy, who had returned to live with his family, had taken significant steps to rehabilitate himself. The Court had received positive reports from Families SA about the family. The appellant’s prospects of rehabilitation and the rebuilding of the family unit were factors to which the majority had regard in refusing the DPP’s appeal.
[7] [2009] SASC 261.
Kelly J, in a dissenting judgment, observed that the Court has a responsibility to act to protect the weak and vulnerable and that general deterrence must play a significant part in sentences involving offences of violence against vulnerable children.
The issue which arises in this case is whether the Judge was in error in deciding not to suspend the sentence. The question is not whether this Court would have suspended the sentence, but whether error has been established.
In circumstances where no specific error can be demonstrated, this Court will only interfere if it is satisfied that, having regard to the circumstances, it is apparent that the sentence is unreasonable or plainly unjust.
Conclusion
The offending in this case was serious offending. The injuries sustained by the child were significant and required a high degree of force. Although the offending occurred as a result of a momentary lapse in a stressful situation, that was reflected in what can only be regarded as a merciful head sentence and non‑parole period.
It has been observed that offences of this nature are particularly serious and that the Court has a responsibility to act to protect the weak and vulnerable.[8] The requirement of the Court to have regard to general deterrence in such cases has been repeatedly stated by this Court.[9]
[8] See R v Partridge [2008] SASC 323.
[9] See R v Johnston [2007] SASC 300.
In my view, the Judge had regard to all relevant factors. It has not been demonstrated that there was any error in the exercise of his discretion. The refusal to suspend the sentence was not unreasonable. It was well within the Judge’s discretion to conclude that good reason did not exist to suspend the sentence.
I would dismiss the appeal.
WHITE J. I agree that the appeal should be dismissed. I agree with the reasons of Sulan J.
DAVID J: I would dismiss the appeal. I also agree with the reasons of Sulan J.